Friday, October 30, 2009

On October 29 the three-judge panel composed of Karen Lecraft Henderson, Reggie B. Walton and James Robertson of the U.S. District Court for the District of Columbia granted the US Government’s motion to dismiss Rodearmel v. Clinton “pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and denies FSO, David Rodearmel’s cross-motion for summary judgment.

The plaintiff, David Rodearmel, a Foreign Service Officer in the United States Department of State (State Department), brought suit against the defendants, Hillary Clinton in her official capacity as Secretary of State and the State Department, alleging that Clinton’s appointment and continuance in office as Secretary of State violates article I, section 6, clause 2 of the United States Constitution.

Count I: “Clinton’s appointment and continuance in office as U.S. Secretary of State violates [the Ineligibility Clause]” and that he “is suffering and will continue to suffer significant, irreparable harm by reason of Defendant Clinton’s unconstitutional appointment and continuance in office.”

Count II: Rodearmel alleges that the defendants “are violating [his] rights under the Fifth Amendment to the U.S. Constitution by depriving [him] of his property right to continued employment as a U.S. Foreign Service Officer at the U.S. Department of State without due process of law.”

The ruling says in part:

“Rodearmel’s general interest as a citizen in the constitutionality of Clinton’s appointment does not give him standing. Nor does his employment as a Foreign Service Officer provide a basis for standing. He points to no specific duty or responsibility he has as a Foreign Service Officer that has been impaired—or even affected—by Clinton’s appointment.”

“Assuming Clinton unconstitutionally holds office as Secretary of State, it does not follow that a Foreign Service Officer generally serving under, taking direction from and reporting to Clinton performs an unconstitutional act thereby, especially in the absence of any allegation that his service is in any way different from what it was under Clinton’s predecessors in office.”

The Court further says that “We note that Rodearmel remains employed by the State Department as a Foreign Service Officer and his future loss of that position—whether by actual discharge or resignation under circumstances constituting constructive discharge—is entirely speculative. Thus, any injury to Rodearmel’s property right in continued employment, to the extent such a right exists, is not “actual or imminent” and does not support his standing. Lujan, 504 U.S. at 560 (internal quotations omitted). To the extent hehas a property right in the “terms and conditions” of his employment and assuming thm to Courtese include the right not to be required to violate the Constitution, Rodearmel’s claim fails because, as noted, he has not asserted any action he either has taken or must take that is itself alleged to be unconstitutional.”

I guess I was wrong; we did not have to wait for 2012. Read the decision here.